Some Basic NJ Partnership Terms to Understand
Vocabulary words have meaning both in your business life and in the law. Below, I have listed the most frequent terms used on this website and their meanings. The terms are listed in alphabetical order. I am certain this glossary will be of assistance to you in your reading.
Partnership Glossary
Glossary of NJ Partnership Terms
A General Partner is the person or entity named as general partner of the partnership who is actively engaged in the day-to-day operations of the partnership. The general partner often assumes the title and represents himself/herself as “general partner” to the public, customers, and creditors.
A Partner is a member of the partnership and identifies himself or herself or “it” (if a legal entity) as an agent, meaning he or she is a legal representative of the partnership and of his or her co-partners, in its business activities. A partner can legally commit a partnership when acting on behalf of the partnership. A partner’s statements (written or verbal) may be imputed to and be binding upon the partnership.
A Secret or “Silent” Partner may take an active role in the operation of the partnership but is not known to, or disclosed to, the public as a partner. This “secretness” does not affect his/her liability as a partner of the partnership or excuse the partnership from the obligations incurred by the secret, silent partner. If found out, he or she can be sued individually.
A Limited Partner does not share in the day-to-day operation and management of the partnership’s business and may or may not be known to the public as a partner; thus, the term is also known as a “silent partner”. See also “A Secret Partner” above.
Bankruptcy: If a partner is declared bankrupt by a bankruptcy court, they are unable to pay their debts. The bankruptcy of a partner may result in the dissolution of the partnership unless a partnership agreement specifies otherwise.
Capital: The money or assets partners or members pay into the partnership bank accounts for its working capital in order to conduct its business.
Capital Account: The ledger of the balance sheet of a partnership that sets out the partners’ or members’ capital contributions and present balance. This is generally the “seed money”, equity investment, and/or capital infusion into the account.
Current Account: A current account is used to record the profits and/or distributions made to a partner or member, after taking into account the debts they owe. At the end of each year, the balance of the current account may be transferred to the capital account.
Class of Partner: There can be many different classes of partners or members in an LLC and in a Limited Liability Partnership. These classes of partners include equity partners, fixed-share partners or fixed-share members, and salaried partners or salaried members. Often, specific names are given to classes, for example, founding members, partners, initial members, full members, full partners, associate members, all of whom can give different voting rights, different shares of profits, and different retirement provisions.
Corporate Partner: An incorporated corporation that is a partner in a partnership. A corporate partner takes its share of profits like any other partner and pays corporation tax on those drawings. An LLP can also be a partner in a partnership.
De-equitization: This is the process by which, under a partnership or LLP agreement, equity is removed from equity partners or members, usually due to poor performance or failure to make required capital contributions. The process needs careful handling to prevent discrimination claims.
Default Provisions: The NJ Uniform Partnership Act sets out how a partnership is to be governed if it does not have a written partnership agreement. Because of the default provisions, a written partnership agreement is crucial.
Dissolution: The process of ending a partnership. The assets are collected and the liabilities paid. Any surplus goes to the partners, and any deficit is borne by them. If a partnership lacks a partnership agreement, any partner can dissolve the partnership. That is not beneficial for those partners who want to continue in business together.
Draws: Partners or members are not employees but are self-employed. They do not receive a salary or wages; instead, they receive a share of the profits and are responsible for losses. When they are paid a share of their profits, it is called a draw. Most partnerships and LLPs agree that partners or members can take anticipated drawings each month, so they do not have to wait until formal (or wherever agreed upon) accounts are prepared annually to be paid.
Employment: An individual is employed by a partnership or company. Employment is governed by N.J. Employment and other laws. The test(s) of who is an employee are complex. Employees have Federal and state statutory rights, whereas partners and members are protected only by New Jersey partnership laws and case law.
Equity: The fair market value of a partner’s or member’s share of a business that is not reflected in his or her capital.
Equity Partner: A partner who has a share in the profits of the partnership and full voting rights.
Expulsion: Expulsion is the process by which a member is expelled from a partnership. Neither the Partnership Act nor the Default Provisions allows for expulsion. An LLP or partnership agreement is required and must be carefully drafted to ensure it is enforceable.
Fixed Share Member: A member who receives a fixed share of the profits of a partnership. He or she is self-employed and can only draw those profits if there is sufficient money in the partnership.
Fixed Share Partner: See Salaried Partner.
Limited Liability Company: A Limited Liability Company is governed by the NJ Limited Liability Act of 2014 and, like a partnership or LLP, is a separate legal entity. It is owned by its members and managed by its managing member(s), individual member(s), or officers. Corporations are often referred to as separate legal entities; the partners, together, have joint and several liability, meaning each partner is individually responsible for all the partnership’s liabilities.
There are pros and cons to different business structures: partnerships and LLCs are tax transparent, but a limited liability partnership offers limited liability for its members and requires certain documents, including an annual tax return, to be filed.
Limited Liability Partnership (LLP): A partnership formed under the Limited Liability Partnership Act of NJ. It offers the flexibility of a partnership, along with some of the formality and structure of a corporation, and is often seen as a hybrid entity. It’s not so much a partnership with limited liability as it is a company with a different tax regime. It has members who share profits as agreed upon in an LLP agreement or under the default provisions of the LLP law. If the members do not enter into an LLP Agreement, the default provisions of the NJ LLP law will apply. There is no distinction between ownership and management in an LLP. An LLP is commonly used for professional practices and consulting businesses, but can also be used for any business or joint venture.
Limited Partnership: A Limited Partnership is formed under the Limited Partnership Act and has general member(s) and limited partner member(s). The limited partner member(s) have no liability so long as they do not take part in the management of the limited partnership. These are rare and should not be confused with limited liability partnerships.
Liquidation: The process by which a Partnership or LLP is wound up. See below under partnership dissolution.
LLP: See Limited Liability Partnership above.
LLP Agreement: An LLP agreement governs the relationship between an LLP and its members. It is different than a partnership agreement (between partners) as it includes the LLP. It can exclude the default provisions of the NJ LLP law, which is crucial for virtually all LLPs. It sets out matters relating to the appointment of new members, classes of members, capital, drawings, retirement, and expulsion, among other things.
Minimum Number of Partners: A partnership must have at least two partners. Similarly, an LLP must have at least two members.
Partner: A partner is one of two or more people who together belong to and run a partnership. Partners are self-employed. (See also different classes of partners).
Partnership: A partnership occurs whenever two or more people go into business/enterprise together with a view to making a profit. Technically, there does not need to be an intention to create a partnership; it just occurs if the criteria of (1) two or more people, (2) going into business, (3) making a profit are met. There is no need for a formal written partnership agreement; if none is entered into, the partnership is governed by the Partnership Act 1890.
Partnership Agreement: This is the foundational document that sets forth, in writing, the partners’ rights and obligations, supplemented by NJ law and the NJ Partnership Act. A partnership agreement technically does not have to be in writing (unless it falls within the Statute of Frauds).
Partnership Dissolution: The winding up and settling of the financial affairs of the partnership when it will no longer operate for the purposes it was formed.
Partnership Property consists of all things of value contributed at the time of the partnership’s organization or subsequently acquired in the partnership’s business or paid for with partnership funds. Real estate and other property purchased by a partnership in NJ may be acquired in the name of the New Jersey partnership.
Partnership Tax: Partners and members are taxed as individuals on their share of the partnership or LLP’s profits. They are taxed on their share of the profit, not on their drawings. If they leave money in the business, it will be taxed. An LLC company pays tax on its profits.
Retirement: The technical term for someone leaving a partnership or LLP. It is not the same as the word “retirement” in general usage, as it has no connotations of stopping work, gardening, or slippers! Most partnership and LLP agreements will include retirement provisions; otherwise, a separate retirement agreement must be drawn up. Both will include how the retiring partner or member will recover their capital and whether they will be paid anything for their equity.
Salaried Partner: A salaried partner is an employee who is given the title ‘partner’. They do not share in the partnership’s profits, but they are liable for the partnership’s liabilities. They should have an indemnity from the equity partners.
Have questions about a Partnership? If so, call our office today. Ask for Mr. Niemann to personally discuss your questions and individual situation at (732) 863-9900 or e-mail him at fniemann@hnlawfirm.com.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, New Jersey Partnership Attorney
Partnership Attorney serving these New Jersey Counties:
Monmouth County, Ocean County, Essex County, Cape May County, Camden County, Mercer County, Middlesex County,
Bergen County, Morris County, Burlington County, Union County, Somerset County, Hudson County, Passaic County